I think the point is that the Founders were making a claim that no government is legitimate if it can do otherwise than this amendment dictates. Lack of a speedy trial is a denial of life, liberty, and the pursuit of happiness, all of which are endowments of a Creator.
With the exception of the Militia clause of the Second Amendment, the Founders were careful to avoid confusing the issues of "what are the constraints on government" and "what are the reasons for the constraints".
Let's take the right to a speedy trial as an example. The Founders could have included reasons such as availability of witnesses as a reason for speedy trials. Prosecutors and judges might then try to claim that a trial is speedy enough if the witnesses seem to be available. As it is written, the courts are bound to provide speedy trials PERIOD. This relieves a defendant of having to establish anything more than that the trial was not speedy to get relief.
The Second Amendment seems weaker today because the Founders made a mistake in the Second Amendment by including a reason (one of many). If the Second Amendment simply stated, "The right of the people to keep and bear arms shall not be infringed.", then there would be little doubt that all people and all arms are included.
By including the Militia clause, the Founders opened us up to claims that since the National Guard is the Militia we no longer need arms. Or we suffer under the claim that only some weapons are protected because some may not be useful to a Militia. Or that some arms threaten the security of a free State.
I believe that the reason they DID include the Militia clause is explained by the claim that the Second Amendment is not "a suicide pact" and that therefor there should be limits on what arms are kept. The truth as I see it is that the lack of a Second Amendment would be a suicide pact allowing government to have a monopoly on possession of arms. Our Founders had just won a long, bloody war against their own central government. One of their early victories, the expulsion of the troops occupying Boston, was accomplished using cannon taken by force from Fort Ticonderoga.
The Second Amendment was intended to insure that future generations, should they take up arms against a tyrannical government, would have their own arms to take up and would not have to begin the conflict unarmed.
The notion that arms might someday exist that should not be kept by the people was of no consequence since the Founders included the ability to amend the Constitution when a super-majority agree that it should be amended. Anti-gunners need a super-majority to have their way.
Taking arms from people that have a right to them IS an act of tyranny.
“I think the point is that the Founders were making a claim that no government is legitimate if it can do otherwise than this amendment dictates.”
Which can be interpreted to mean that if people establish for themselves a government that does otherwise than this amendment dictates, said government is not legitimate in spite of what the people desire for themselves.
“Lack of a speedy trial is a denial of life, liberty, and the pursuit of happiness, all of which are endowments of a Creator.”
The results of a trial, speedy or not, can be such a denial.
The holding of a trial can be a denial of the pursuit of happiness if the one to be tried doesn’t want a trial.
“With the exception of the Militia clause of the Second Amendment, the Founders were careful to avoid confusing the issues of “what are the constraints on government” and “what are the reasons for the constraints”.”
Sometimes we may need to delve into and understand the reasons for the constraints in order to understand the constraints and their extent.
“The Second Amendment seems weaker today because the Founders made a mistake in the Second Amendment by including a reason (one of many).”
The founders had a problem in that they were trying to incorporate a “kill switch” into a system of government they themselves were establishing after they had just won a long, bloody war against their own central government.
“If the Second Amendment simply stated, “The right of the people to keep and bear arms shall not be infringed.”, then there would be little doubt that all people and all arms are included.”
I disagree that there would be little doubt. One person might not be able to bear a three pounder cannon of the time, but maybe several men could have. So what is the meaning of bear, especially given the plural of “people”?
What is the meaning of arms? That’s easier perhaps since many believe it’s limited to what can be born. But is a firearm disguised as a cell phone (they exist), whose main purpose is assassination or murder, an arm in the sense meant?
But where does it say all arms? It just say “arms”, which some would argue is not all inclusive.
And above all, what is the “right”? Many already say it’s constrained, by another’s property rights, by youthful age, by mental illness, by intent perhaps. How can we talk about infringement without knowing all this? How can we talk about “what are the constraints on government”, other than ineffectually, without “what are the reasons for the constraints”?
“By including the Militia clause, the Founders opened us up to claims that since the National Guard is the Militia we no longer need arms.”
They fail to understand that the National Guard is only part of the militia, they are the organized militia. Many others are in the unorganized militia, although some of them have tried to organize on their own. And then there’s the Ohio Military Reserve, which is State sanctioned under law but separate from the National Guard.
“Or we suffer under the claim that only some weapons are protected because some may not be useful to a Militia.”
Yet some claim that some weapons should not be protected because they would be useful only to the military, a part of which is the militia. Oh well, consistency is the bugaboo of a small mind.
“Or that some arms threaten the security of a free State.”
They are correct, which is partly why we want and need and claim the right to such weapons to protect the security of a free State from those who threaten it.